Commercial Appropriation of Identity: How Could Two Courts Get It So Wrong?

Article excerpt

1. Introduction

In our modern society the images famous people have become important commodities in a megabillion dollar global entertainment industry. Legal systems across the globe have recognized this commoditization of the individual and have attempted with various degrees of success, to regulate the commercial appropriation of an individual's image. This recognition of publicity rights has brought this aspect of the law in frequent conflict with the fundamental values underlying freedom of speech. Disputes concerning publicity rights invariably require of the courts to balance the individual's privacy and publicity rights against the appropriator's right to free speech. The courts have thus far approached the issue largely on a case-by-case basis, without laying down clear guidelines that could be of assistance. This note suggests that the lack of clear guidance has apparently led two courts on either side of the Atlantic to hand down what appears to be flawed judgments. It further suggests that clear guidelines can be formulated and such guidelines could have guided those courts to reach different conclusions, or not.

The dilemma for any court in a case dealing with an infringement of publicity rights, is to distinguish between unlawful commercial appropriation and lawful free speech. What makes the unauthorized publication of a photograph in a celebrity magazine different from the unauthorized use of that same photograph on a box of cereals? In both instances the photograph is used to obtain a commercial advantage. Why is it acceptable in some instances while it is frowned upon in others?

2. Baseball Fantasy Leagues

In CBC Distribution and Marketing Inc v Major League Baseball Advanced Media LP (1) the United States Court of Appeals for the Eighth Circuit held that the fantasy leagues, in which CBC used the names of athletes from various professional leagues without their permission, was protected under the First Amendment even though CBC did so for commercial gain. The court held that in this case, First Amendment protection prevailed over any right to publicity protection which Missouri law could provide to Major League Baseball Advanced Media.

Justice Arnold ruled that state law rights of publicity must be balanced against First Amendment considerations. He concluded that the former must give way to the latter in the case before the court since the information used in CBC's fantasy baseball leagues is all readily available in the public domain. He further explained that

  "[c]ourts have also recognized the public value of information
  about the game of baseball and its players, referring to baseball
  as 'the national pastime.' ... A California court, in a case where
  Major League Baseball was itself defending its use of players'
  names, likenesses, and information against the players' asserted
  rights of publicity, observed, 'Major league baseball is followed
  by millions of people across this country on a daily basis ...
  The public has an enduring fascination in the records set by
  former players and in memorable moments from previous games ...
  The records and statistics remain of interest to the public
  because they provide context that allows fans to better
  appreciate (or deprecate) today's performances.' The ...
  'recitation and discussion of factual data concerning the
  athletic performance of [players on Major League Baseball's
  website] command a substantial public interest, and, therefore,
  is a form of expression due substantial constitutional protection.'"

It seems that the court may not have fully appreciated the exact nature of fantasy leagues and placed too much emphasis on the records and statistics of the players. It is not merely a case of fans discussing the game in social chat rooms or news channels reporting on the game. Fantasy leagues are virtual environments where actual players are in fact traded. Participants make up virtual teams composed of actual players. …

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